Montufar-Caballero v. Garland (unpub.) – [This should be published!]
“The BIA, citing Mickeviciute and Lopez v. Whitaker, 761 F. App’x 790, 793-94 (tenth Cir. 2019), concluded Petitioners’ failure to offer a replica of the disciplinary grievance meant that they had not complied with the Lozada necessities. Petitioners argue the BIA departed from established coverage by creating a brand new requirement that doesn’t seem in Lozada or in our circumstances {that a} petitioner should present a replica of the disciplinary grievance. They assert “Lozada requires solely that the movement replicate that the grievance was filed, and the Tenth Circuit requires solely that proof {that a} grievance was filed be introduced.” Pet’rs Opening Br. at 12. Petitioners contend no precedent or interpretation of Lozada requires the disciplinary grievance be filed with the movement to reopen. … [T]he authorities has not supplied any authorized authority that establishes Lozada requires {that a} copy of the disciplinary grievance be supplied with the movement to reopen. … The plain language of Lozada doesn’t require any proof be submitted to assist the third requirement, however as an alternative merely requires the movement to replicate {that a} disciplinary grievance has been filed. … We agree with Petitioners that nothing within the authority the BIA cited—Lozada, Mickeviciute, or Lopez—establishes {that a} petitioner should file a replica of the disciplinary grievance to adjust to the third requirement. … The federal government cites different circumstances to assist its argument the BIA didn’t abuse its discretion in denying the movement to reopen, however none of those further authorities set up {that a} copy of the disciplinary grievance should be supplied to adjust to the third Lozada requirement. … We conclude the BIA abused its discretion by inexplicably departing from the established coverage in Lozada and imposing a further requirement for a movement to reopen primarily based on ineffective help of counsel that doesn’t seem inside the Lozada resolution or any case deciphering Lozada. Though the BIA has persistently required the submitting of a bar grievance to adjust to the third Lozada requirement, it has not established what proof, if any, should be supplied to fulfill this requirement—the Lozada resolution itself merely states that the movement to reopen “ought to replicate whether or not a grievance has been filed,” 19 I. & N. Dec. at 639. … Accordingly, we grant the petition for assessment, vacate the BIA’s order, and remand for additional proceedings according to this resolution.”
[Hats way off to Alec Bracken!]